Mohd. Sajid Bains, (Earlier Known As Sajid Khursheed Bains) v. The Income Tax Officer, Ward

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 5605/2023 Mohd. Sajid Bains, (Earlier Known As Sajid Khursheed Bains) S/o ShriKhursheed Ahmed Bains, Kan Ji Ki Haveli, Fatehpur Shekhawati,Fatehpur, Distt. Sikar - 332301 (Rajasthan) ----Petitioner Versus 1. The Income Tax Officer, Ward-1, Income Tax Office, Todi Nagar,Sanwali Road, Sikar-332001 (Rajasthan)Sanwali Road, Sikar-332001 (Rajasthan) 2. Union Of India, Through Principal Commissioner Of Income Tax,Jaipur-2, Central Revenue Building, Statue Circle, Jaipur-302010(Rajasthan)Jaipur-2, Central Revenue Building, Statue Circle, Jaipur-302010(Rajasthan) ----Respondents For Petitioner(s) : Mr. Shafi Mohammed Chouhan through VCFor Respondent(s): Mr. Sandeep Pathak HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE VINOD KUMAR BHARWANIREPORTABLE Order 31/01/2024 ’-By the Court (Per Honble Mr. Justice Inderjeet Singh): 1.Today, this matter was listed before the Coordinate Bench(Court No.5) and as per the notice in the supplementary cause-list, the urgent matters were mentioned before this Court. 2.Counsel for the petitioner mentioned the matter before thisCourt even without informing the opposite counsel and pressedmuch hard for finally deciding the matter at this stage only. 3.During the course of the proceedings, we called upon theopposite counsel for the Department to assist this Court. On therequest made by counsel for the petitioner, we have heard thematter finally at this stage. 4.This writ petition has been filed by the petitioner challengingthe order dated 30.03.2023 passed by the respondent No.1 under Section 148 of the Income Tax Act, 1961 (to be referred as 'theAct of 1961'). 5.Counsel for the petitioner submits that the respondents haveno jurisdiction to issue the notice under Section 148 of the Act of1961 as the same has been issued without following thenotification dated 29.03.2022 issued by the CBDT. He furthersubmitted that a Coordinate Bench of this Court at Principal Seat,Jodhpur in D.B. Civil Writ Petition No.8296/2023 (Krishna KumarVs. The Income Tax Officer & Anr.), after considering the matterhas directed that the proceedings may go on but the final order ofassessment be not passed. 6.On the other hand, counsel for the respondent opposed thewrit petition and submitted that this writ petition has been filed bythe petitioner at the premature stage against the show-causenotice only as the proceedings are still pending before theauthority before whom the petitioner can submit reply and raiseall his objections available under the law. 7.We have considered the submissions made by counsel for theparties and perused the record. 8.The Hon’ble Supreme Court in the matter of Union of India(UOI) and Ors. Vs. Coastal Container Transporters Association &Ors., reported in (2019) 20 SCC 446 in para-19 has held asunder :- “19. On the other hand, we find force in thecontention of the learned senior Counsel, SriRadhakrishnan, appearing for the Appellants thatthe High Court has committed error in entertainingthe writ petition Under Article 226 of Constitutionof India at the stage of show cause notices.Though there is no bar as such for entertaining thewrit petitions at the stage of show cause notice,contention of the learned senior Counsel, SriRadhakrishnan, appearing for the Appellants thatthe High Court has committed error in entertainingthe writ petition Under Article 226 of Constitutionof India at the stage of show cause notices.Though there is no bar as such for entertaining thewrit petitions at the stage of show cause notice, “19. On the other hand, we find force in thecontention of the learned senior Counsel, SriRadhakrishnan, appearing for the Appellants thatthe High Court has committed error in entertainingthe writ petition Under Article 226 of Constitutionof India at the stage of show cause notices.Though there is no bar as such for entertaining thewrit petitions at the stage of show cause notice,contention of the learned senior Counsel, SriRadhakrishnan, appearing for the Appellants thatthe High Court has committed error in entertainingthe writ petition Under Article 226 of Constitutionof India at the stage of show cause notices.Though there is no bar as such for entertaining thewrit petitions at the stage of show cause notice, but it is settled by number of decisions of thisCourt, where writ petitions can be entertained atthe show cause notice stage. Neither it is a case oflack of jurisdiction nor any violation of principles ofnatural justice is alleged so as to entertain the writpetition at the stage of notice. High Court oughtnot to have entertained the writ petition, more so,when against the final orders appeal lies to thisCourt. The judgment of this Court in the case ofUnion of India and Anr. v. Guwahati Carbon Ltd.(supra) relied on by the learned senior Counsel forthe Appellants also supports their case. In theaforesaid judgment, arising out of Central ExciseAct, 1944, this Court has held that excise law is acomplete code in order to seek redress in excisematters and held that entertaining writ petition isnot proper where alternative remedy under statuteis available. When there is a serious dispute withregard to classification of service, the Respondentsought to have responded to the show causenotices by placing material in support of theirstand but at the same time, there is no reason toapproach the High Court questioning the veryshow cause notices. Further, as held by the HighCourt, it cannot be said that even from thecontents of show cause notices there are nofactual disputes. Further, the judgment of thisCourt in the case of Malladi Drugs & Pharma Ltd.v. Union of India MANU/SC/0407/2004 : 2004(166) ELT 153 (S.C.), relied on by the learnedsenior Counsel for the Appellants also supportstheir case where this Court has upheld thejudgment of the High Court which refused tointerfere at show cause notice stage.” 9.The Hon’ble Supreme Court in the matter of Commissioner ofCentral Excise, Haldia Vs. Krishna Wax (P) Ltd., reported in (2020)12 SCC 572 in para-12 has held as under :- “12. It has been laid down by this Court that theexcise law is a complete code in itself and it wouldnormally not be appropriate for a Writ Court toentertain a petition Under Article 226 of theConstitution and that the concerned person mustfirst raise all the objections before the authority who had issued a show cause notice and theredressal in terms of the existing provisions of thelaw could be taken resort to if an adverse orderwas passed against such person. For example inUnion of India and Anr. v. Guwahati CarbonLimited MANU/SC/1256/2012 : (2012) 11 SCC651, it was concluded; "The Excise Law is acomplete code in order to seek redress in excisematters and hence may not be appropriate for thewrit court to entertain a petition Under Article 226of the Constitution", while in Malladi Drugs andPharmaLtd.v.UnionofIndiaMANU/SC/0407/2004 : 2004 (166) ELT 153 (S.C.),it was observed: ...The High Court, has, by the impugned judgmentheld that the Appellant should first raise all theobjections before the Authority who have issuedthe show cause notice and in case any adverseorder is passed against the Appellant, then libertyhas been granted to approach the High Court... ...in our view, the High Court was absolutely rightin dismissing the writ petition against a mere showcause notice. ...The High Court, has, by the impugned judgmentheld that the Appellant should first raise all theobjections before the Authority who have issuedthe show cause notice and in case any adverseorder is passed against the Appellant, then libertyhas been granted to approach the High Court... ...in our view, the High Court was absolutely rightin dismissing the writ petition against a mere showcause notice. It is thus well settled that writ petition shouldnormally not be entertained against mere issuanceof show cause notice. In the present case no showcause notice was even issued when the High Courthad initially entertained the petition and directedthe Department to prima facie consider whetherthere was material to proceed with the matter.” 10.The Hon’ble Supreme Court in the matter of the State ofMadhya Pradesh & Ors. Vs. Commercial Engineers and BodyBuilding Company Limited, reported in 2022/INSC/1088 in para-6has held as under :- “6. At this stage, a recent decision of this Court inthe case of The State of Maharashtra and Ors. v.Greatship (India) Limited (Civil Appeal No. 4956 of2022, decided on 20.09.2022) is required to bereferred to. After taking into consideration theearlier decision of this Court in the case of UnitedBank of India v. Satyawati Tondon and Ors.,reported in MANU/SC/0541/2010 : (2010) 8 SCC110, it is observed and held that in a tax matterwhen a statutory remedy of appeal is available, theHigh Court ought not to have entertained the writpetition Under Article 226 of the Constitution ofIndia against the Assessment Order by-passing thestatutory remedy of appeal. While holding so, thisCourt considered the observations made by thisCourt in paragraphs 49 to 53 in Satyawati Tondon(supra), which read as under: 49. The views expressed in Titaghur PaperMills Co. Ltd. v. State of OrissaMANU/SC/0317/1983 : (1983) 2 SCC 433were echoed in CCE v. Dunlop India Ltd.MANU/SC/0169/1984 : (1985) 1 SCC 260in the following words: (SCC p. 264, para3) 3. ... Article 226 is not meant to short-circuit or circumvent statutory procedures.It is only where statutory remedies areentirely ill-suited to meet the demands ofextraordinary situations, as for instancewhere the very vires of the statute is inquestion or where private or public wrongsare so inextricably mixed up and theprevention of public injury and thevindication of public justice require it thatrecourse may be had to Article 226 of theConstitution. But then the Court must havegood and sufficient reason to bypass thealternative remedy provided by statute. Surely matters involving the revenuewhere statutory remedies are available arenot such matters. We can also take judicialnotice of the fact that the vast majority ofthe petitions Under Article 226 of theConstitution are filed solely for the purposeof obtaining interim orders and thereafterprolong the proceedings by one device orthe other. The practice certainly needs tobe strongly discouraged. 50. In Punjab National Bank v. O.C.Krishnan MANU/SC/0452/2001 : (2001) 6SCC 569 this Court considered the questionwhether a petition Under Article 227 of theConstitution was maintainable against anorder passed by the Tribunal Under Section19 of the DRT Act and observed: (SCC p.570, paras 5-6) 5. In our opinion, the order which waspassed by the Tribunal directing sale ofmortgaged property was appealable UnderSection 20 of the Recovery of Debts Due toBanks and Financial Institutions Act, 1993(for short 'the Act'). The High Court oughtnot to have exercised its jurisdiction UnderArticle 227 in view of the provision foralternative remedy contained in the Act.We do not propose to go into thecorrectness of the decision of the HighCourt and whether the order passed by theTribunal was correct or not has to bedecided before an appropriate forum. 5. In our opinion, the order which waspassed by the Tribunal directing sale ofmortgaged property was appealable UnderSection 20 of the Recovery of Debts Due toBanks and Financial Institutions Act, 1993(for short 'the Act'). The High Court oughtnot to have exercised its jurisdiction UnderArticle 227 in view of the provision foralternative remedy contained in the Act.We do not propose to go into thecorrectness of the decision of the HighCourt and whether the order passed by theTribunal was correct or not has to bedecided before an appropriate forum. 6. The Act has been enacted with a view toprovide a special procedure for recovery ofdebts due to the banks and the financialinstitutions. There is a hierarchy of appealprovided in the Act, namely, filing of anappeal Under Section 20 and this fast-trackprocedure cannot be allowed to be derailedeither by taking recourse to proceedingsUnder Articles 226 and 227 of theConstitution or by filing a civil suit, which isexpressly barred. Even though a provisionunder an Act cannot expressly oust the jurisdiction of the Court Under Articles 226and 227 of the Constitution, nevertheless,when there is an alternative remedyavailable, judicial prudence demands thatthe Court refrains from exercising itsjurisdiction under the said constitutionalprovisions. This was a case where the HighCourt should not have entertained thepetition Under Article 227 of theConstitution and should have directed theRespondent to take recourse to the appealmechanism provided by the Act.51. In CCT v. Indian Explosives Ltd.[MANU/SC/7246/2008 : (2008) 3 SCC688] the Court reversed an order passedby the Division Bench of the Orissa HighCourt quashing the show-cause noticeissued to the Respondent under the OrissaSales Tax Act by observing that the HighCourt had completely ignored theparameters laid down by this Court in alarge number of cases relating toexhaustion of alternative remedy. 52. In City and Industrial DevelopmentCorpn. v. Dosu Aardeshir Bhiwandiwala[MANU/SC/8250/2008 : (2009) 1 SCC168] the Court highlighted the parameterswhich are required to be kept in view bythe High Court while exercising jurisdictionUnder Article 226 of the Constitution. Paras29 and 30 of that judgment which containthe views of this Court read as under:(SCC pp. 175-76) 29. In our opinion, the High Court whileexercising its extraordinary jurisdictionUnder Article 226 of the Constitution isduty-bound to take all the relevant factsand circumstances into consideration anddecide for itself even in the absence ofproper affidavits from the State and itsinstrumentalities as to whether any case atall is made out requiring its interference onthe basis of the material made available onrecord. There is nothing like issuing an ex parte writ of mandamus, order or directionin a public law remedy. Further, whileconsidering the validity of impugned actionor inaction the Court will not consider itselfrestricted to the pleadings of the State butwould be free to satisfy itself whether anycase as such is made out by a personinvoking its extraordinary jurisdictionUnder Article 226 of the Constitution. 30. The Court while exercising itsjurisdiction Under Article 226 is duty-boundto consider whether: (a) adjudication of writ petition involves any complex and disputed questions of factsand whether they can be satisfactorilyresolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative oreffective remedy for the resolution of thedispute; (d) person invoking the jurisdiction is guiltyof unexplained delay and laches; (e) ex facie barred by any laws oflimitation; (f) grant of relief is against public policy orbarred by any valid law; and host of otherfactors. 30. The Court while exercising itsjurisdiction Under Article 226 is duty-boundto consider whether: (a) adjudication of writ petition involves any complex and disputed questions of factsand whether they can be satisfactorilyresolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative oreffective remedy for the resolution of thedispute; (d) person invoking the jurisdiction is guiltyof unexplained delay and laches; (e) ex facie barred by any laws oflimitation; (f) grant of relief is against public policy orbarred by any valid law; and host of otherfactors. The Court in appropriate cases in itsdiscretion may direct the State or itsinstrumentalities as the case may be to fileproper affidavits placing all the relevantfacts truly and accurately for theconsideration of the Court and particularlyin cases where public revenue and publicinterest are involved. Such directions arealways required to be complied with by theState. No relief could be granted in a public law remedy as a matter of course only onthe ground that the State did not file itscounter-affidavit opposing the writ petition.Further, empty and self-defeating affidavitsor statements of Government spokesmenby themselves do not form basis to grantany relief to a person in a public lawremedy to which he is not otherwiseentitled to in law. 53. In Raj Kumar Shivhare v. Directorate ofEnforcement[MANU/SC/0249/2010:(2010) 4 SCC 772] the Court was dealingwith the issue whether the alternativestatutory remedy available under theForeign Exchange Management Act, 1999can be bypassed and jurisdiction UnderArticle 226 of the Constitution could beinvoked. After examining the scheme of theAct, the Court observed: (SCC p. 781,paras 31-32) 31. When a statutory forum is created bylaw for redressal of grievance and that tooin a fiscal statute, a writ petition should notbe entertained ignoring the statutorydispensation. In this case the High Court isa statutory forum of appeal on a question oflaw. That should not be abdicated and givena go-by by a litigant for invoking the forumof judicial review of the High Court underwrit jurisdiction. The High Court, with greatrespect, fell into a manifest error by notappreciating this aspect of the matter. Ithas however dismissed the writ petition onthe ground of lack of territorial jurisdiction. 3.2. No reason could be assigned by theAppellant's counsel to demonstrate why theappellate jurisdiction of the High CourtUnder Section 35 of FEMA does not providean efficacious remedy. In fact there couldhardly be any reason since the High Courtitself is the appellate forum.” 11.The Hon’ble Supreme Court in the matter of State of AssamVs. Barak Upatyaka D.U. Karmachari Sanstha, reported in (2009)5SCC 694 in para-10 has held as under :- “10. A precedent is a judicial decisioncontaining a principle, which forms anauthoritative element termed as ratiodecidendi. An interim order which does notfinally and conclusively decide an issuecannot be a precedent. Any reasonsassigned in support of such non-finalinterim order containing prima faciefindings, are only tentative. Any interimdirections issued on the basis of such primafacie findings are temporary arrangementsto preserve the status quo till the matter isfinally decided, to ensure that the matterdoes not become either infructuous or a faitaccompli before the final hearing.” 12.The Hon’ble Supreme Court in the matter of Union of India(UOI) & Ors. Vs. Vicco Laboratories, reported in (2007) 13 SCC270 in para-30 has held as under :- “30. Normally, the writ court should notinterfere at the stage of issuance of showcause notice by the authorities. In such a 12.The Hon’ble Supreme Court in the matter of Union of India(UOI) & Ors. Vs. Vicco Laboratories, reported in (2007) 13 SCC270 in para-30 has held as under :- “30. Normally, the writ court should notinterfere at the stage of issuance of showcause notice by the authorities. In such a case, the parties get ample opportunity toput forth their contentions before theconcerned authorities and to satisfy theconcerned authorities about the absence ofcase for proceeding against the personagainst whom the show cause notices havebeen issued. Abstinence from interferenceat the stage of issuance of show causenotice in order to relegate the parties to theproceedingsbeforetheconcernedauthorities is the normal rule. However, thesaid rule is not without exceptions. Where aShow Cause notice is issued either withoutjurisdiction or in an abuse of process of law,certainly in that case, the writ court wouldnot hesitate to interfere even at the stageof issuance of show cause notice. Theinterference at the show cause notice stageshould be rare and not in a routine manner.Mere assertion by the writ petitioner thatnotice was without jurisdiction and/or abuseof process of law would not suffice. Itshould be prima facie established to be so.Where factual adjudication would benecessary, interference is ruled out.” 13.Apparently, the notice issued to the petitioner under Section148 of the Act of 1961 is only a show cause notice for whichundoubtedly the petitioner is having remedy to file reply & raise allobjections before the Assessing Authority where the proceedingsare going on. Thus, considering the judgments passed by theHon'ble Supreme Court, as referred above, we see no reason tointerfere in this matter as the proceedings are still pending beforethe concerned Assessing Authority where the petitioner is certainly having liberty to file the reply and raise all his objections asavailable under the law. 14.So far as the interim passed by the Coordinate Bench atPrincipal Seat, Jodhpur in the matter of Krishna Kumar (supra)relied upon by counsel for the petitioner is concerned, the saidorder was passed as an interim measure, which has not decidedthe issue finally. In our considered view, since we are deciding thematter finally at the request of counsel for the petitioner himself,the said interim order passed by the Coordinate Bench does nothelp to the petitioner in view of the judgment passed by theHon’ble Supreme Court in the matter of State of Assam (supra).15.We are also of the view that in number of petitions filedunder Article 226 of the Constitution of India challenge is made tomere issuance of the show cause notice and for seeking interimorders therein, which prolong the proceedings pending before theconcerned authority and therefore in our considered viewinterference with regard to mere issuance of show cause noticeshould be rare and not in a routine manner. 16.In view of what we have discussed above, this writ petition isdismissed. However, the petitioner is at liberty to raise allobjections, available under the law, before the Assessing Authoritywhere the proceedings are going on. It is expected from theAssessing Authority to decide the same at the time ofconsideration on assessment itself. Pending application(s), if any,also stands disposed of. (VINOD KUMAR BHARWANI),J (INDERJEET SINGH),J